What does a U.S. Supreme Court ruling last week on a student’s off-campus speech mean for schools? Hear what a lawyer and a crisis communicator say.
The U.S. Supreme Court ruled in favor of Brandi Levy, a former high school cheerleader whose Pennsylvania public school disciplined the then freshman by suspending her from the junior varsity cheer team for a year after she made a Snapchat post after school from a local convenience store after she learned she did not make the varsity cheer team that said, “F——— school f——— softball f——— cheer f——— everything” with two images including a photo of a raised middle finger.
After a federal district court decision that the school punishing the student violated her free speech according to Tinker v. Des Moines Independent Community School District and that there was no substantial disruption to school, the student was reinstated to the junior varsity cheer team. The decision was affirmed by a panel of the U.S. Court of Appeals for the Third Circuit.
The U.S. Supreme Court decided 8-1 in favor of the student in Mahanoy Area School District v. B. L. noting that “while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the school are not sufficient to overcome B. L.’s interest in free expression in this case.”
An attorney’s view
“In order for schools to discipline students for off-campus speech, the speech has to be related to things such as severe bullying, threats aimed at teachers or students, participation in school online activities, hacking into school computers or academic integrity,” said Chris Thomas, general counsel for Arizona School Boards Association and associate executive director.
“However, that DOESN’T mean the school can’t address concerning student off-campus speech that doesn’t fit into those categories,” Thomas said.
“Schools that are aware of truly concerning student off-campus speech can still call that student’s parents and encourage them to work with their student towards better digital citizenship,” Thomas said.
“But the school itself cannot take disciplinary action unless the speech fits into one of the aforementioned categories,” Thomas said.
If a school district has questions whether such speech fits into one of these categories, they should call their school lawyer, Thomas said.
In the majority opinion of U.S. Supreme Court, Justice Stephen Breyer wrote “off-campus speech will normally fall within the zone of parental, rather than school-related responsibility,” that “courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all,” and that “protection must include the protection of unpopular ideas, for popular ideas have less need for protection.”
“Given the many different kinds of off-campus speech, the different potential school-related and circumstance-specific justifications, and the differing extent to which those justifications may call for First Amendment leeway, we can, as a general matter, say little more than this: Taken together, these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished,” Justice Breyer wrote.
In his dissenting opinion, Supreme Court Justice Clarence Thomas wrote, “when students are on campus, the majority says, schools have authority in loco parentis — that is, as substitutes of parents — to discipline speech and conduct. Off campus, the authority of schools is somewhat less.” But Justice Thomas asks what authority does a school have, how does that lessen when off-campus speech and conduct are involved, and how does a court decide if speech is on- or off-campus?
“A more searching review reveals that schools historically could discipline students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent,” Justice Thomas wrote.
A communicator’s view
Legal analysis of the U.S. Supreme Court’s decision should be left to attorneys, constitutional experts, and school districts should consult with their attorneys for legal interpretations, said Thom Fladung, managing partner for Hennes Communications, and a VIP – Very Important Partner to the Arizona School Boards Association.
“From a communications standpoint, I think that most importantly the Supreme Court backed away from the Third Circuit Court of Appeals’ sweeping opinion that said the First Amendment did not allow public schools to punish students for speech outside school grounds,” Fladung said.
Fladung noted that as Supreme Court Justice Stephen Breyer wrote in the majority opinion: “Unlike the Third Circuit, we do not believe the special characteristics that give schools additional license to regulate student speech always disappear when a school regulates speech that takes place off campus. The school’s regulatory interests remain significant in some off-campus circumstances.”
The Supreme Court opinion does not establish hard-and-fast rules or even guidelines for when schools can step in or what they should do or say, Fladung said.
“But it does establish that schools have a significant interest when students’ off-campus actions involve bullying or harassment, threats and other actions that may significantly disrupt school operations. And that’s a lot more than nothing,” Fladung said.
Aaron Tang, a law professor at the University of California-Davis, wrote in USA Today before the decision: “If the justices are wise, they will write an opinion ensuring that who loses can still protect their interests even after an adverse ruling.”
“From my perspective, that’s pretty much what happened,” Fladung said.
How this builds on students’ free speech rights
In the majority opinion, Justice Beyer also noted that, “B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.”
In addition, Justice Beyer also wrote, “schools have a strong interest in ensuring that future generations understand the workings in practice of the well-known aphorism, ‘I disapprove of what you say, but I will defend to the death your right to say it.’ ”
“It affirms that students have free speech rights protected from government action like any other citizen. It also acknowledges that sometimes that speech will be profane, impolite or inappropriate – but that’s why we have the First Amendment,” said Thomas with ASBA.
Thomas said he believe this is a good opinion for students, parents, and schools.
“It gives us clear guidelines and settles a lot of confusion created by conflicting court opinions around the country,” Thomas said.
“It also reaffirms that students have free speech rights like all citizens and that they make some mistakes while exercising those rights and that society should allow students leeway to make them,” Thomas said.
“However, this case also affirms that the school can discipline for off-campus speech that negatively impact other students or school employees in a truly harmful way. I see this case as truly a win-win,” Thomas said.
Fladung said the legal director for the American Civil Liberties Union, which argued the case for the plaintiffs, said, “The school in this case asked the court to allow it to punish speech that it considered ‘disruptive,’ regardless of where it occurs. If the court had accepted the argument, it would have put in peril all manner of young people’s speech, including their expression on politics, school operations, and general teen frustrations.”
“From that standpoint, the decision protected those free speech rights in an off-campus setting, during a social media era that has blurred the lines between on-campus and off,” Fladung said. “But the opinion on its face also is intentionally limited, it seems to me.”
As the majority opinion said, “We leave for future cases to decide where, when and how these features mean the speaker’s off-campus location will make the critical difference. This case can, however, provide one example.”
Fladung said this decision does just that.
“Schools will continue to face a myriad of challenging situations with social media use,” Fladung said.
“This case established you can give your school the finger,” Fladung said.
“What happens when students believe they’re expressing their free speech rights on political issues, and members of the school community interpret that speech as harassment or bullying? Much remains to be decided,” Fladung said.
When racist speech is involved
How does this decision impact schools’ options to respond to racist speech off-campus in social media posts or on campus such as in graffiti found on campus?
“First, I would suggest that schools take a hard look at whether the speech is actually racist. That is often a judgment call and should not be taken as self-evident,” Thomas said.
“However, if the speech is deemed racist, I believe it can be the basis for discipline even after the B.L. cases, it likely falls into the category of severe bullying or threatening toward students,” Thomas said,
Everything, however, is very fact dependent and Thomas said he would urge schools to consult with their lawyer before proceeding.
From a communications standpoint, schools now should review policies and procedures in student handbooks and other documents about how they are addressing those protections, especially when it comes to social media, Fladung said.
“Talk more – not less – about these issues in your school community. Maybe I’m a cockeyed optimist, but I hold to the view that bringing more light to these issues can help reduce the heat,” Fladung said.
What schools can do
Some schools discuss responsible social media use with students and let them know that what they say and do on social media now can have consequences for them in the future.
“I’d encourage all schools to do this. I wish students did more of this on a peer-to-peer basis. And I’d beg parents to do it,” Fladung said.
“This case provides yet another stark example of something we all should have learned by now: If you put it on social media, you just published something that will live forever,” Fladung said.
“Brandi Levy posted that rant to Snapchat – where it’s supposed to disappear in 24 hours. Except people took screenshots and four years later a Snapchat becomes a nationally known issue,” Fladung said.
“Social media offers amazing opportunities to be creative, converse with all kinds of people, hear different, rich opinions and, well, be social,” Fladung said.
“It also offers amazing opportunities to post something as a teenager that will follow you into college applications, job applications and every other part of your life. Use it with eyes wide open,” Fladung said.
Schools should continue to encourage students’ good online behavior, Thomas said.
“Any curriculum that includes the following questions, in my opinion, is a good basis for this encouragement: 1) Does this need to be said 2) Does this need to be said by me? 3) Does this need to be said by me right now?” Thomas said.
“Social media isn’t going anywhere and it’s not going to get easier for the folks who run schools, the students who attend schools or the parents with kids in schools,” Fladung said. “Everybody has to lean into these issues, as honestly and transparently as possible, before the crisis hits.”